Beginning Nov. 1, 2022, an employment agency, employer, employee or agent thereof will commit an unlawful discriminatory practice by advertising a job, promotion, or transfer opportunity in New York City (NYC) without including the minimum and maximum salary for the position. The new law (Int. No. 1208-B) amending the NYC Human Rights Law (NYHRL) initially passed the NYC Council on Dec. 15, 2021. The measure took effect on Jan. 15, 2022, after the mayor returned it unsigned. On March 22, 2022, the NYC Commission on Human Rights issued a fact sheet on the new law. On April 28, 2022, a bill (Int. No. 0134-2022, Version A) enacted by the NYC Council pushed back the effective date and made other changes.
Application. All employers with four or more employees or one or more domestic workers in any location are covered, provided at least one employee works in NYC. Temporary staffing firms are exempt, since they already disclose this information in compliance with the state’s Wage Theft Prevention Act. However, employers that work with temporary help firms must comply with the salary transparency requirements.
Covered job listings. Any written advertisement for a job, promotion, or transfer opportunity that will be performed entirely or partly in NYC is covered. This includes jobs performed in an office, in the field or remotely from the employee’s home. Positions that cannot or will not be performed at least partly in NYC are not covered The law applies regardless of how the advertisement is distributed (for example, posts on internal bulletin boards, internet advertisements, printed flyers at job fairs or newspaper advertisements). Covered advertisements include ones for “full- or part-time employees, interns, domestic workers, independent contractors, or any other category of worker [are] protected by the NYCHRL.” The commission’s fact sheet clarifies that the law does not prohibit employers from hiring without using an advertisement or require employers to create an advertisement in order to hire.
Included salary information. The range for the listed maximum and minimum annual salary or hourly wage will extend from the lowest to the highest annual salary or hourly wage that the employer — in good faith — believes it will pay for the advertised job, promotion or transfer. The commission’s fact sheet emphasizes that the range cannot be open-ended. For example, “$15 per hour and up” or “maximum $50,000 per year” would not comply. The minimum and maximum salary may be identical if the position has no salary flexibility. Advertisements that cover multiple jobs, promotions or transfer opportunities can include salary ranges that are specific to each opportunity.
Salary definition. The law does not specify what is included in “salary,” but the commission’s fact sheet says the term covers “the base wage or rate of pay, regardless of the frequency of payment.”
Salary does not include other forms of compensation or benefits offered with the position, such as:
Employers may but aren’t required to include this information.
Enforcement. The NYC Commission on Human Rights enforces NYCHRL violations and may impose civil penalties of up to $250,000 for unlawful discriminatory practices. The commission also may require employers found in violation to amend advertisements and postings, create or update policies, conduct training, provide notices of rights to employees or applicants, and engage in other forms of affirmative relief.
Current employees can bring a legal action against their employer for advertising a job, promotion or transfer without posting a minimum and maximum hourly wage or annual salary. Other individuals will not be able to sue an employer for violating the law.
The commission’s fact sheet and amendments have clarified the law’s application, and employers with positions in NYC now have more time to prepare for being transparent about pay in job postings by Nov 1, 2022. Here are some steps to consider.
In recent years, many states have enacted legislation requiring the disclosure of salary ranges and pay data. For example, in Colorado, each job vacancy posting has to disclose the hourly wage or salary, or the hourly wage or salary range, and give a general description of all benefits and other compensation offered. The implementation rules specify that this requirement does not apply to jobs performed outside of Colorado and job postings entirely outside of Colorado. California, Connecticut, Maryland, Nevada, Rhode Island and Washington also require employers to disclose — voluntarily or on request — information about salary ranges for open positions or promotions. Other states, such as Massachusetts and New York, are considering similar legislation. For more information, see Roundup: US employer resources on states’ recent equal pay laws.